This article is written by Vishakha Gupta, a 3rd year student of NUJS, Kolkata.
To great chagrin of the regressive population of India, live-in relationships are reaching heights of popularity. It provides the youth an opportunity to know their partner without engaging into a legally binding relationship with them. These easy-in easy-out relationships exclude the abhorrent mess of family drama and lengthy court procedures in case the couple decides to break up. Despite such on-the-face benefits, live-in relationships have been despised by a great majority of our country. It is palpable that the crowd which pronounces death penalty for pre-marital sexual intercourse would be wary towards the concept of live-in relationships as well.
If you want to ask your partner to move in with you, without undergoing the tedious wedding ceremonies, you should be aware of the legal scheme that surrounds the same.
What Constitutes a Live-in Relationship?
Amidst the long prevalent regressive attitudes of the Indian population, further elucidated by a lack of specific legislation on the subject, the judgment of Supreme Court in Indra Sarma
v. V.K.V. Sarma(see the court judgment here) comes as a draught of fresh air. Though the case pertained to application of Domestic Violence Act, the Court went into a lengthy discussion on live-in relationships acknowledging their existence in society and explaining how certain provisions of Indian law would apply to them. However, this was not the first case to do so. Realising the gaining popularity of such relationships, Courts have readily taken note of their presence in society in the past as well.
There is no legislative definition or a strait jacket formula for a live-in relationship. It is popularly understood to be a domestic arrangement between two people in a romantic relationship. Sexual intimacy is also a popularly accepted but not a mandatory requirement of such relationship. Supreme Court has held that long and continuous cohabitation of man and woman as a husband and wife may raise a rebuttable presumption of marriage. Facts can be used to rebut or weaken this presumption. (Thakur Gokalchand v. Parvin Kumari (Supreme Court) see the court judgment here.
Five kinds of live-in relationships were identified by the Court in Indra Sarma case. Firstly, a domestic relationship between an adult male and an adult female, both unmarried. This is the most uncomplicated sort of relationship. Secondly, a domestic relationship between a married man and an adult unmarried woman, entered knowingly. Thirdly, a domestic relationship between an adult unmarried man and a married woman, entered knowingly. These two are the most problematic grey areas of recognizing live-in relationship. Moreover, the second type can lead to a conviction under Indian Penal Code for the crime of adultery. Fourthly, a domestic relationship between an unmarried adult female and a married male, entered unknowingly. Lastly, a domestic relationship between two gay or lesbian partners, which cannot be recognized a relationship in nature of marriage in India due to laws against homosexuality. Court has clarified that the above are merely illustrative.
Domestic Violence Act, 2005 was legislated as an attempt to protect women from abusive partners and family. As per Section 2 (f), the Act not only applies to a married couple, but also to a ‘relationship in nature of marriage’. The Supreme Court in D. Velusamy v. D. Patchaiammal (see the court judgment here) and Indra Sarma case has allowed live-in relationships to be covered within the purview of this legislation, subject to fulfillment of some additional criterion.
A woman under DV Act is entitled to claim remedy in case of physical, mental, verbal or economic abuse. In addition, remedies are conferred for alienation of woman’s property and restriction from use of facilities to which the abused is entitled. The abused has been granted several rights and protections under this legislation. If the Magistrate is convinced of domestic violence taking place, he can pass orders prohibiting the accused from:
“(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.”
In addition, Magistrate can pass restraining orders, order accused to provide monetary reliefs to the abused, which includes medical expenses, reimbursement for loss of earnings or property and maintenance. The woman, in such cases is also allowed custody of her kids, and a right to claim compensation for any harm caused.
Velusamy case subserves a common law marriage to be same as a live-in relationship to constitute a ‘relationship in the nature of marriage’. The pre-requisites of such a relationship are:
“(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.”
Indra Sarma case, on the other hand, enlists a number of criteria on basis of which a subjective analysis of the relationship should be undertaken by the Court in order to determine if it constitutes a live-in relationship under the purview of Domestic Violence Act. The grounds listed were neither strictly binding, nor exhaustive. They, however, provided an insight into the aspects which would bring live-in relationships under the definition of ‘relationships in the nature of marriage’. The guidelines are:
“(1) Duration of period of relationship
Section 2(f) of the DV Act has used the expression “at any point of time”, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.
(2) Shared household
The expression has been defined Under Section 2(s) of the DV Act and, hence, need no further elaboration.
(3) Pooling of Resources and Financial Arrangements
Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments in business, shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor.
(4) Domestic Arrangements
Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or up keeping the house, etc. is an indication of a relationship in the nature of marriage.
(5) Sexual Relationship
Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring etc.
Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.
(7) Socialization in Public
Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.
(8) Intention and conduct of the parties
Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.”
If these guidelines indicate a ‘relationship in the nature of marriage’, a complaint can be filed under the Domestic Violence Act. Whether a relationship meets the above mentioned tests is purely a question of fact and degree. The Court in IndraSarma case, has given detailed guidelines to gain an insight into the nature of relationship in comparison to earlier cases, where Court had given a vague requirement of ‘being akin to a marital relationship’. Moreover, Court has clarified that the listed guidelines are not exhaustive and are merely indicative, giving a wide ambit to scope of the Act.
Child out of wedlock
Couples living together for a long time develop a natural urge to have kids. However, live-in couples are not allowed to adopt kids as per the Guidelines Governing the Adoption of Children, 2011(see here) released by Central Adoption Resource Authority. Having a child out of wedlock creates a profusion of legal complexities, with respect to its maintenance rights, legitimacy or illegitimacy, inheritance rights of the child, and custodial rights in case of a split.
Legitimacy and inheritance rights of child
Legitimacy of children born out of wedlock presents a dilemma to the Indian Courts. Courts have been divided in this endeavor. Child out of a prolonged relationship is deemed legitimate (S.P.S. Balasubramanyam vs Suruttayan, see the court judgment here). Courts have not pronounced a uniform judgment with respect to shorter relationships. Further complexity is added with respect to Section 16 of the Hindu Marriage Act, 1955 which accords a legal status of legitimacy even to illegitimate children (those born out of wedlock) for the purpose of inheritance. Thus inheritance rights have been granted to children out of a live-in relationship, with respect to both ancestral and self-acquired property. [Parayankandiyal Eravath Kanapravan Kalliani Amma vs K.Devi 1996 SCC (4)76] Deeming a child legitimate for certain purposes and illegitimate for other has raised questions of equality in the Courts. Courts, in recent decisions have held that children out of wedlock will be legitimate (for example, Uday Gupta vs Aysha and Anr, see the court judgment here).
Maintenance and custodial rights of children
Personal laws differ on their position on the right of children out of wedlock to maintenance. Hindu Law mandates the father to maintain the child, whereas Muslim Law has absolved the father of such obligation. Section 125 of the Criminal Procedure Code provides remedy to children who are unable to claim maintenance under personal laws. Section 125 provides a legal right to children, wives and parents to claim maintenance.
Lack of a special legislation governing live-in relationships is most felt with respect to custodial rights. Issue of custodial rights emerges when a couple decides to split. As there are no specific laws with respect to live-in relationships, Courts may decide these cases like marriage cases, if they are brought before them. Under personal laws, father is given the first right in case of a legitimate child, whereas mother is given the first preference in case of illegitimate child. However, this position has been overruled by the Supreme Court, and both, mother and father have been accorded equal rights over the child. Custody will be decided on the basis of facts and circumstances of each case. [Gita Hariharan v. RBI, see the court judgment here]
Maintenance of woman
Right of maintenance is granted to wives under all personal laws- be it Hinduism, Islam, Christianity, or Zoroastrianism. However, none of these religions recognize live-in relationships. Instead, an unmarried woman living with a man is considered unchaste. In absence of any remedy available to women engaged in a live-in relationship, Courts have extended the scope of application of remedy available under Criminal Procedure Code.
Section 125 of the Criminal Procedure Code accords a legal right to maintenance to wives. Malimath Committee Report and the 8th Law Commission recommended inclusion of women in a live in relationships within the purview of this Section. Supreme Court accepted this principle in Abhijit Bhikaseth Auti v. State Of Maharashtra and Others (see the court judgment here)and asserted that marriage in a strict form need not be shown to claim maintenance under Section 125 of the Criminal Procedure Code
As live-in relationships are not recognized by any particular legislation in India, cohabitation rights are not granted to couples in such relationships. However, they may themselves enter into contract for the same. Thus, in case of death of either of the partners, the property devolves on his/her own estate and the partner cannot inherit the same in absence of a will to the contrary.
It is trite that although widely considered immoral, live-in relationships do not constitute an illegal act(Lata Singh v State of UP(Supreme Court), see the court judgment here). Though Courts have sympathized with live-in couples and conferred certain rights over them, there is no legislation explicitly recognizing the legal rights of such couples. Thus, a couple, at any given time will have to prove in great length the consistency and seriousness of their relationship to avail of the rights accorded to them by the Courts.
One must also be wary of possible frauds that can emerge out of a live-in relationship. There have been numerous cases of a woman alleging rape after years of living together (see Bangalore Mirror story here). Similarly, with courts raising a presumption of marriage in case of prolonged live-in relationships, right to property has been abused by the partners. There is no legal obligation for your partner to stick with you forever. He/she can walk out of the door at any given time.
So, if you are okay with the law as it is (or, as it not is) with respect to live-in relationships, ask your partner to move in today!